42 HISTORICAL ANTECEDENTS

In 1775 in Mostyn v. Fabrics1 Lord Mansfield also adum-
brated part of the rule that now governs liability in tort, though
it was not finally settled until 1870.2 He laid down that what
was a justification by the lex loci delicti could be pleaded as a
defence to an action in England.

Lord Other principles suggested or established in the eighteenth
Mansfield's century were that the fax loci celebrationis governs the formal

..*.'<• * _ 4 4 1 1 * . . . 1 »

statement

of principle validity of a marriage,3 that movables are subject to the lex
domicilii of the owner for the purpose of succession4 and bank-
ruptcy distribution,5 and that actions relating to foreign im-
movables are not sustainable in England.6 It was not, however,
until nearly the close of the century that a clear acknowledg-
ment was made of the duty of English courts to give effect to
foreign laws. It was made by Lord Mansfield.

'Every action here must be tried by the law of England, but the
law of England says that in a variety of circumstances, with regard to
contracts legally made abroad, the laws of the country where the cause
of action arose shall govern.'7

The Thus the eighteenth century represents the embryonic
nmc^th period of private international law, a period which extended to
J/ at least the middle of the next century. As late as 1825 Best
C.J. felt justified in remarking that 'these questions of inter-
national law do not often occur',8 and though the era of develop-
ment was at hand, a considerable time had yet to pass before
the main rules were determined. Thus, although the rules to
govern contracts, torts and legitimation were laid down in
1865, 1869 an<3 1887 respectively, it was not until 1895 that
the dependence of divorce upon domicil, as regards both juris-
diction and choice of law, was established. Such matters as
capacity, nullity jurisdiction and the law to govern the assign-
ment of movables, whether tangible or intangible, are still
controversial. The end of the formative period is not yet in
sight. There are, in fact, many transactions and events common
in daily life that are quite untouched by any btit comparatively

1 (1774), i Cowp. 161.
* Phillips v. Eyre (1869), L.R. 6 Q.B. i.
3 Scrimshircv. Scrim shire (1752), 2 Hag. Con. 395.
- 4 Pipon v, Pipon (1744), Amb. 25,

5 Solomons v. Ross (1764), i H. Bl 131 (N.).

6 Shilling v. Farmer (1716), i Strange 646.

7 Eolman v. Johnson (1775), i Cowp. 341. Lord Stowell spoke to the same
effect fa Dalrymple v. Dalrymple (1811), 2 Hag. Con. 54, cited supra, p. 31.

8 Arnott v. Redfern (1825), 2 C. & P. 88.